Section 30: Administration of Justice Act 1982: extension of definition of "relative"

49.     Under the Administration of Justice Act 1982, it is competent for a "relative" of an injured person to raise a court action for a claim of liability against the responsible person. This section amends the definition of "relative" under the Act to include a same-sex cohabiting partner.

Cohabitation: domestic interdicts

Section 31: Domestic interdicts

50.     This section introduces into the 1981 Act the concept of "domestic interdicts" which will apply to unmarried cohabitants, either opposite-sex or same-sex. Domestic interdicts will have much the same effect in relation to cohabitants as matrimonial interdicts have for married couples with similar scope as is defined in section 10, above. Subsection (3) introduces into the 1981 Act two new sections relating to domestic interdicts. Subsection (18A) describes what a domestic interdict is, who it will apply to and what the scope of such an interdict is. Subsection (18B) provides further detail as to the application of domestic interdicts.

Amendment of Protection from Abuse (Scotland) Act 2001: powers of arrest

Section 32: Amendment of Protection from Abuse (Scotland) Act 2001: powers of arrest

51.     This section provides that where an application is made to the court for an interdict for the purposes of protection from abuse, the court must attach a power of arrest to the interdict if that interdict is ancillary to an exclusion order, including an interim exclusion order made under section 4 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 or section 104 of the Civil Partnership Act 2004. The effect of this is that Protection from Abuse (Scotland) Act 2001 will contain exclusively the power of the court to attach powers of arrest to interdicts granted under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, including domestic interdicts, and the Civil Partnership Act 2004.

Amendments of Civil Partnership Act 2004

Section 33: Amendments of Civil Partnership Act 2004

52.     This gives effect to schedule 1 which amends the Civil Partnership Act 2004.

Application of 1981 Act to cohabiting couples of same sex

Section 34: Application of 1981 Act to cohabitating couples of same sex

53.     Section 34 introduces amendments to the Matrimonial Homes (Family Protection) (Scotland) Act 1981 extending the provisions on occupancy rights of cohabiting couples (dealt with in section 18) to same sex couples.

Amendments of Damages (Scotland) Act 1976

Section 35: Amendments of Damages (Scotland) Act 1976

54.     This section provides for amendment of the Damages (Scotland) Act 1976 whereby the definition of "immediate family" set out in Schedule 1 to that Act is extended to include any person who accepted the deceased as a child of the person's family, any person who was the brother or sister of the deceased and any person who was the grandparent or grandchild of the deceased. In addition, persons who are related by affinity, for example son-in-law and mother-in-law, will no longer be entitled to sue for grief and suffering (known as non-patrimonial loss).

Amendments of Adults with Incapacity (Scotland) Act 2000

Section 36: Amendments of Adults with Incapacity (Scotland) Act 2000

55.     This section amends the Adults with Incapacity (Scotland) Act 2000 to include civil partners, as well as married people, in the provisions relating to the termination of power of attorney - thus ensuring that civil partners are treated in the same way as spouses in this legislation.

Jurisdiction

Section 37: Jurisdiction: actions for declarator of recognition of certain foreign decrees

56.     This section provides rules as to the jurisdiction of the Court of Session and the Sheriff Court in actions where a pursuer is seeking recognition or non-recognition in Scotland of a decree of divorce, nullity or separation granted in a country outwith the European Union.

Private international law

Section 38: Validity of marriages

57.     The rules as to which law governs the validity of marriage in cases involving a foreign element (such as where one of the spouses is domiciled in one country but married in another) depend partly on statute and partly on common law. Section 38 offers more clarity in this regard by providing for which rules will apply, in certain circumstances. Subsection (1) provides that, subject to the Foreign Marriage Act 1892, the formal validity of a marriage will be governed by the laws of the place where the marriage took place. Subsection (2) provides that the question of whether a party had capacity, or had consented, to marry will be determined by the law of that person's domicile, but is subject to the exceptions in subsections (3) and (4). Subsection (3) makes provision that where a marriage takes place in Scotland, notwithstanding any rule of law of either party's domicile, Scots law in relation void marriages shall prevail. Subsection (4) provides a public policy exception to subsection (2). Subsection (5) makes provision in relation to the capacity of a person to marry in Scotland where the law of that person's domicile requires parental consent to be obtained.

Section 39: Matrimonial property

58.     This section provides for the rules which will apply in determining rights to matrimonial property in marriages involving a foreign element.

Section 40: Aliment

59.     This section provides for the rules which will apply in defining aliment in marriages involving a foreign element.

Section 41: Effect of parents' marriage in determining status to depend on law of domicile

60.     This section provides that questions arising as to the effect that the marital status of a person's parents has on that person's status will be determined by the law of country in which that person is domiciled. Consequential amendments are made in schedules 2 and 3. This section follows on from the provisions removing the last remnants of matters relating to illegitimacy.

Declarator of freedom and putting to silence: action no longer competent

Section 42: Action for declarator of freedom and putting to silence to cease to be competent

61.     An action for a declarator of nullity of marriage is not available if there is not even a semblance of marriage or pretended marriage that can be declared null. In the past, the remedy for this situation has been an action for declarator of freedom and putting to silence in which the pursuer asks the court for a declarator that he or she is free of any marriage with the defender and for a decree ordaining the defender to desist from asserting that he or she is the spouse of the pursuer and putting the defender to silence thereafter. Whilst there may have been a need for this type of action in days when irregular marriages were common and there was often doubt as to whether a couple had privately exchanged consent to marry, the action is now virtually unknown and has become obsolete. Section 42 therefore removes the remedy by providing that it shall no longer be competent to raise an action for declarator of freedom and putting to silence.

General

Section 44: Ancillary provision

62.     This section provides the Scottish Ministers with power to make consequential, transitional or saving provisions needed to give full effect to the Act.

Section 45: Minor and consequential amendments and appeals

63.     Section 45(1) gives effect to schedule 2 which provides for consequential amendments. Section 45(2) gives effect to schedule 3 which provides for consequential repeals.

Section 46: Short title and commencement

64.     Section 46 contains power to make commencement orders (which are not subject to any parliamentary procedure) to bring the Act into effect. Statutory instruments containing orders made under section 44 will be subject to negative resolution procedure unless they modify primary legislation, in which case they will be subject to affirmative procedure in the Parliament.

Schedule 1: Amendments of the Civil Partnership Act 2004

65.     Schedule 1 makes amendments to the Civil Partnership Act 2004. Paragraphs 3 to 6 relate to the occupancy rights of civil partners with regard to the family home. Paragraph 8 extends the scope of interdicts to include the family home, place of work and school attended by a child in the care of the applicant civil partner. Paragraph 9 reduces the qualifying non-cohabitation periods for dissolution of a civil partnership from two years to one year where the parties consent and from five years to two where one of the parties does not consent. Paragraph 12 amends the definition of "family home" in section 135 of the Civil Partnership Act 2004 to include the condition that where one civil partner transfers tenancy to the other civil partner (either by agreement or under any enactment) then from that point the house ceases to be the "family home".

PARLIAMENTARY HISTORY

66.     The following table sets out, for each Stage of the proceedings in the Scottish Parliament on the Bill for this Act, the dates on which the proceedings at that stage took place, the references to the Official report of those proceedings, the dates on which Committee Reports and other papers relating to the Act were published, and references to those Reports and other papers.

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